14 N.E.2d 645 | Ill. | 1938
Walter S. Booth, then a resident of Wabash county, died testate on August 12, 1933, and on October 23, following, his will was duly admitted to record. The appellants, heirs who were not remembered in the will, filed their complaint in the circuit court asking that the trust provisions of the will be held invalid. Stella Krug, Ruth A. Wilson and Mamie S. Darnell, beneficiaries under the private testamentary trust, the executors of the will, and the directors of school district No. 13, in White county, were made defendants. The Attorney General filed an intervening petition on behalf of the charitable trust created by the will, and answered the complaint. The cause was heard on the complaint, the answers and a stipulation as to heirship, and, while it was under advisement, appellants obtained leave and filed a supplemental complaint setting up the death of one of the co-trustees since the commencement of the suit, and alleging that the trusts created by the will had terminated by reason of the death of such trustee. On motion of defendants the supplemental complaint was stricken from the files. The court entered a decree in favor of the defendants and taxed the costs against the plaintiffs. A freehold is involved, and the appeal has been perfected directly to this court.
The testator, by the first six clauses of his will, provided that his just debts and certain specific legacies be paid, and these clauses of the will were not questioned. The material parts of the will read as follows:
"Seventh: After the payments of the bequests in paragraphs Two (2), Three (3), Four (4), Five (5), and Six (6), above, then it is my will that the income from the residue of my estate (to be invested in United States Bonds or in other equally good securities) to be given absolutely to my sister, Stella (Booth) Krug, for her upkeep, maintenance and enjoyment, as long as she lives. *489
"Eighth: When the bequests mentioned in paragraph Seven (7) above shall terminate through the death of my sister, Stella (Booth) Krug, it is my will that the income from the residue of my estate be given in absolutely equal portions to my said half-sisters, Ruth A. Wilson and Mamie S. Darnell, provided they are single. In case one is unmarried the division to each of them should be made according to her needs for her upkeep, maintenance and enjoyment as long as she lives. In the event of either dying before the other, then it is my will that the whole amount of said income be paid to the survivor (provided she needs it) as long as she shall live.
"Ninth: In the event the said income does not meet the needs of my said sister, Stella (Booth) Krug, as set forth in Paragraph Seven (7) above, then the executors of this Will are hereby authorized and directed to use any or all of my estate to meet the needs of my said sister, Stella (Booth) Krug.
"Tenth: When the provisions of paragraph Nine (9) above shall have lapsed through the death of my sister, Stella (Booth) Krug, then in the event that the said income does not meet the needs of my said half-sisters, Ruth A. Wilson and Mamie S. Darnell, as prescribed in paragraph Eight (8) above, the executors of this Will are hereby authorized and directed to use any or all of my estate to meet the needs of my said half-sisters, Ruth A. Wilson and Mamie S. Darnell.
"Eleventh: When the bequests mentioned in the above paragraphs Seven (7), Eight (8), Nine (9), and Ten (10) shall have terminated through the death of my said sister, Stella (Booth) Krug, and my said half-sisters, Ruth A. Wilson and Mamie S. Darnell, it is my will that the residue of my estate be given to the Board of Education of the Public Schools of the Village of Enfield, White County, Illinois, known as District Number Thirteen (13) for the erection and equipment of a building in said Village of Enfield, for *490 the use of said public schools; provided, however, that said Board of Education shall contribute an equal amount toward such building and equipment. The said Board of Education must meet the above conditions in a reasonable length of time.
"Twelfth: When all the terms of the above paragraphs have been met, the residue of my estate shall be used for the improvement and upkeep of the Public Schools of the Village of Enfield, White County, Illinois, known as District Number Thirteen (13).
"Thirteenth: I hereby nominate and appoint D.L. Boyd, Carmi, Illinois, and T.H. Daly, Mt. Carmel, Illinois, my trustees and executors to carry out and execute the provisions of this will."
Appellants contend that the trust is invalid, because the trustees may, in their discretion, divert the principal of the fund from the charitable to the private trust, and that the possibility of there being nothing left for charitable purposes after the termination of the life estates renders the trust void. They rely on Wilce v. VanAnden,
We pointed out that the power of disposition given the life tenant in the Burke case was not unlimited, but was qualified, and that equity would restrain an exercise of the power which was not reasonably necessary to supply the life tenant with the comforts and necessities of life. In the present case the power of the trustees to use the principal for the support of the life tenants could likewise be controlled by a court of chancery if there is abuse of the power. Dean v. Northern Trust Co.
Under the above decisions the controlling question is whether the discretion of the trustees to use the corpus of the fund as well as the income for the benefit of Stella Krug and her half-sisters, is absolute and unconditional, or whether that discretion must be exercised within limits fixed by the testator. It is to be observed that neither the life tenants nor the school district complain that the trustees are improperly withholding or disposing of the corpus of the fund, and so we need not construe the words "upkeep, maintenance and enjoyment" except to determine if they furnish a standard that prevents the trustees from arbitrarily devoting the entire fund to the use of the life tenants. Only if the income of the fund does not equal the *494
needs of the beneficiaries for their up-keep, maintenance and enjoyment, may the corpus be used. This does not give the trustees absolute power to use the corpus, and a court of equity will restrain any exercise of the power without reference to the conditions imposed. (Dalrymple v. Leach,
Appellants contend that the death of a trustee terminated the trust because they say the testator intended that the trustees should act jointly in administering the trust, and that he wished his estate to have the benefit of their joint judgment rather than their individual judgments. It is, therefore, insisted that the court erred in dismissing their supplemental complaint. Conveyances to trustees are expressly excepted from the requirement of our statute that express words are necessary to create a joint tenancy, (Ill. Rev. Stat. 1937, chap. 76, sec. 1,) and we have held that trustees hold as joint tenants, unless a contrary intention is expressed, and on the death of one trustee, the administration of the trust devolves on the survivor, and does not pass to the heirs. (Reichert v. Missouri and IllinoisCoal Co.
Appellants contend that the chancellor erred in his construction of paragraphs eleven and twelve of the will. He held that the condition imposed in paragraph eleven which required the board of education to contribute an equal amount toward the school building and equipment to be built with the charitable trust fund was a condition precedent that had to be met within a reasonable time after the fund became available for school purposes, and the school district had a reasonable opportunity to avail itself thereof. The chancellor also found that paragraphs eleven and twelve had to be construed together, and, when so construed, it was evident that the testator intended that thecorpus of the fund remaining after the life estates should be used for two purposes, viz., the erection and equipment of a school building and for the up-keep of school district number 13. It was accordingly held that the school district was not necessarily compelled to advance a sum equal to the corpus of the trust fund, but that the amount to be advanced would be determined when the fund became available, in the light of the circumstances then surrounding the district, and its needs at that time. The effect of the holding was that the condition mentioned in paragraph eleven did not apply to paragraph twelve, and the school district would only be compelled to match that part of the trust fund which would, in the future, be devoted to the erection and equipment of a building. The chancellor placed a correct interpretation on these paragraphs of the will. The reasonable time within which to comply with the condition does not expire before the fund becomes ascertainable in amount and available for school purposes. The testator could not reasonably be said to have required that the district should advance its part of the fund long before the fund will be available for school *496 purposes. The construction adopted by the chancellor gives effect to all parts of the will, because if the trustees were compelled to devote the residue of the fund to the erection of a building and for its equipment, there would be nothing left for the up-keep of the building under paragraph twelve.
Appellants contend that the trust is invalid because there may be an accumulation of income for more than twenty-one years after testator's death, since it is not provided that the half-sisters shall necessarily have all the income from the trust fund. The will does not direct that the income be accumulated, there is no charge that it is being accumulated, and appellants are not interested in this provision, because, if there is an accumulation it is simply void, and the income would go to the persons who would otherwise be entitled to it, in this case the half-sisters, and not the heirs generally. (French v. Calkins,supra.) This point is not well taken.
Appellants make two other contentions which need not be considered at length. They say that there was a partial intestacy because the testator did not specifically devise his real estate to his trustees. The presumption against intestacy is so strong that courts will adopt any reasonable construction of a will to avoid it. (Welch v. Caldwell,
The decree of the circuit court of Wabash county is correct, and is affirmed.
Decree affirmed. *497